Bad Faith Litigation and Ignorance of the Law: Meeting an Insurer's Duty to Know the Law Without Losing Privileges

Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Insurance
- event Date
Tuesday, August 30, 2022
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss an insurance company's duty to know the law, the duty to explain denial of claims, what an adequate and proper claim denial looks like, how these duties affect the assertion of privilege, and how to stem erosion of evidentiary privileges in bad faith litigation.
Faculty

Mr. Boone focuses his practice on a wide range of corporate, executive and professional liability matters as both coverage and defense counsel. He has appeared on behalf of insurers, entities and individuals before federal and state courts throughout the United States at both the trial and appellate levels. Mr. Boone also has extensive experience in resolving legal issues prior to litigation, which includes everything from monitoring sensitive and complex insurance coverage matters to representing clients in a variety of federal, state and internal investigations. He has also advised numerous established and startup companies regarding corporate governance matters and currently serves as a director or adviser on several corporate boards.

Mr. Korde has helped policyholders recover over $1 billion for first party, business interruption and contingent business interruption losses. Those losses include significant damages to skyscrapers, total supply chain failures, and business interruptions losses arising out of the inability to conduct interbank transactions. They also include cyber losses, such as computer security infrastructure failures, the loss of sensitive consumer and policyholder financial information, and contingent business interruption losses arising out of internet-related failures. Mr. Korde has resolved or litigated numerous cases involving insurance for hurricanes, floods, terrorist attacks, oil refinery explosions, disasters at chemical plants, supply chain failures, environmental damages, asbestos claims, MTBE claims, and natural resources damages. He has helped negotiate multi-million dollar payments under D&O policies as well payments for policyholders undergoing bankruptcy re-organization. Mr. Korde has worked with policyholders in the United States, in Europe, and in Asia. He has advised clients in nearly all sectors of the economy including air travel, back-end computer services, banking, chemical distillation, consumer products, financial services, hotels, manufacturing, pharmaceuticals, petroleum, and travel services.
Ms. Dinneen concentrates her practice on the representation of insurers in bad faith litigation, catastrophe/mass tort defense, insurance fraud, and insurance coverage matters. She also has experience defending Jones Act and LHWCA claims. Ms. Dinneen is a frequent speaker on bad faith insurance topics.
Description
Claim adjusters must have at least a baseline understanding of the relevant state's law necessary to perform their duties of reviewing claims and explaining the reasons for denying a claim. Ignorance of the law will not save an insurer from a bad faith claim for improper denial. But adjusters must be careful not to engage in the unlicensed practice of law.
If adjusters lack this basic understanding of the law, they must seek out those with the requisite tools and knowledge, who are frequently claims coverage counsel. Current trends and decisions, however, have eroded insurers' ability to assert attorney-client privilege or the work product doctrine for coverage counsel's files, making them discoverable in the most mundane of cases.
Insurance companies should adopt proactive strategies to protect communications with attorneys whether those communications are written or oral, and whether challenged in written discovery or in deposition. Some of these strategies are most effective if they are deployed when the communication or file is made. Other strategies must be used when counsel is presented with a completed file after the fact.
Listen as this experienced panel discusses the insurance company's duty to know the law, the duty to explain denial of claims, what an adequate and proper claim denial looks like, and how to stem erosion of evidentiary privileges in bad faith litigation.
Outline
- Claim adjuster's duties with respect to legal precepts
- Defensible claim denial letter
- Explanation of facts
- Explanation of law
- Role of coverage counsel in claims adjusting
- Erosion of evidentiary privileges in bad faith litigation
Benefits
The panel will review these and other pivotal issues:
- What constitutes "ignorance of the law"?
- Do non-lawyers writing claim denial letters that explain the law engage in the unauthorized practice of law?
- What does a complete and defensible claim denial letter look like?
- Are evidentiary privileges less likely to be upheld in bad faith cases?
- What types of deposition questions can imperil evidentiary privileges?
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